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War Regime
1. War: International Law on the use of force From the realist point of view, war is inevitable and that is why international law takes war into account and tries to regulate it. But what exactly does international law regulates about war? Can war be regulated at all? Well it can, the international law regulates the when is war legal and what is legal in war.[1] 1.1. When is war legal? Jus ad bellum The UN Charter allows the use of force under only two circumstances: for self-defense and when authorized by the UN Security Council for the purpose of protecting international security and peace. There must be really no other option than the self-defense use of force and it has to apply the proportionality principle, which means that a state is only allowed to do as necessarily to defend itself. Use of force and threat to use of force are prohibited but there exist two legal exceptions stablished in the Article 2 fraction 4 of the UN Charter. Image 1 Article 2 Fraction 4 of the 1945 The UN Security Council can authorize the use of force in case of threat to international peace. The events that might provoke the decision of the UNSC to allow the use of force are not stablished, it shall be decided by the members when an event is a threat to international peace. The UN Security Council has 5 permanent members: China, France, Russia, The United Kingdom and The United States of America, and 10 and ten non-permanent members elected for two-year terms by the General Assembly. The permanent members have a right to veto. [2]. *Chapter VI of the UN Charter stablishes what measures to take to have a peaceful settlement of disputes, countries are obliged to first try to settle any disputes through diplomatic or generallypeaceful means and the security council can investigate cases and makerecommendations, or refer cases to the International Court of Justice. *Chapter VI says that in case of military escalation, the security council may suggest measures and request countries in the UN to help enforce diplomatic and economic measures or to request the use of armed forces against the international threat. Sometimes states use a wide interpretation of the law to validate their use of force, like the controversy use of force against terrorism. In this case, we can see that terrorism groups are not States, their attacks are fugacious and therefore it is illogical for a State to say they are attacking to maintain international peace, even if it is a preemptive strike, which is only legal against a nuclear threat, it is quite controversial because how is it possible that a State is certain a terrorist group is actually going to attack? Is the so-called terrorist attack a threat to international peace? And what would be the appropriate use of force in this case? How would a State apply the proportionality principle? Anyway, the UN stablished 19 international legal instruments to prevent terrorist acts that you can learn about in here http://www.un.org/en/counterterrorism/legal-instruments.shtml 2.What is legal in war? Jus in bellum 2.1 Weapons banned in war First of, the international law has banned the use of certain weapons in war because those weapons might be damaging more than necessarily, remember that in war you can only do as much to defend yourself.[3] In order to regulate the use of certain weapons, some treaties have been sign throughout history, in the case of nuclear weapons the treaties are: * Partial Nuclear Test Ban Treaty signed in 1963 but France and China did not sign it. * Nuclear Non-Proliferation Treaty signed from 1968 to 1970, which limits the spread of nuclear weapons to new countries but the five countries that already have nuclear weapons can preserve them, who promised to not use unless necessary. Israel, India and Pakistan did not sign it and North Korea signed but did not comply and developed weapon programs. [3] *The use of chemical and biological weapons is banned because the damage can sometimes spread to civilians and remain affecting the area and natural resources such as water, the treaties are: *Geneva Protocol on Chemical and Biological Weapons signed in 1925 banned deadly poisonous gas and bacteriological weapons. *Biological Weapons Convention signed from 1972 to 1975 banned some gasses that affected the nervous system, also banned the use and spread of biological agents and toxins in weapons. *Chemical Weapons Convention singed from 1992 to 1993 banned the production and use of chemical weapons, and promised the destruction of existing chemical weapons (that wasn’t very effective), North Korea, Israel and Egypt never signed. *United Nations Convention on Certain Conventional Weapons signed from 1981 to 1983, banned the use of weapons in warfare that carry high risk of hurting civilians or cause unnecessary suffering to soldiers: *Protocol I banned the use of non-detectable fragments as prime weapons because are hard to detect and remove *Protocol II regulates the use of mines and booby-traps: it regulates the use of mines, prohibits the use and targeting of undetectable anti-person mines or booby-traps at civilians’ areas, requires clearance of mines after the conflict. *Protocol III banned the use of flame/burn weapons against civilians, banned airstrikes against civilian or natural targets. *Protocol IV stablishes that unexploded bombs, grenades, mines and all explosive remnants should be removed after the conflict. *Convention on Cluster Munitions signed in 2008 aimed to the total ban of production, stockpile and use of cluster munitions, which are bombs that explode into smaller bombs. Major powers did not sign it 2.2 Rules of war The rules of Humanitarian Law or Rules of War reside in the idea of not damaging civilians or natural resources, but only to not disabled soldiers in combat.[4]What is allowed and what is not allowed in war is stablished by the Geneva Conventions of 1949 and its additional protocols. To introduce you a little bit to the rules of war watch this video.The red cross is in charge of giving humanitarian help in combat area, they are not to be attacked and therefore are distinguished with the official emblem of the red cross. The additional protocols have a specific subject each: *Protocol I (1977): Protection of Victims of International Armed Conflicts. *Protocol II (1977): Protection of Victims of Non-International Armed Conflicts. *Protocol III (2005): Adoption of an Additional Distinctive Emblem. 2.3 War Tribunals What is the point of having rules on war if you cannot impose them and punish those who do not follow them? There are war tribunals to punish those who don’t comply. [5] 2.4 Victory's Justice Ad Hoc Tribunals are tribunals created after the bloodiest wars to judge and punish crimes against humanity, genocide and war crimes such as The International Criminal Tribunal for the former Yugoslavia (ICTY) and the court for Rwanda (ICTR) which were both created by the UN Security Council. The problem with the Ad Hoc tribunals is that the judges were often the winners of the judged war and therefore loose legitimacy. The International Court of Justice may entertain two types of cases: legal disputes between States submitted to it by them, and requests for advisory opinions on legal questions referred to it by United Nations organs and specialized agencies. The ICJ also lacks of legitimacy just for the fact that mostly are third world countries have been judged and never the major powers. 3. Chapter VI and VII: Escalation of disputes States are obligated to first try to settle any disputes through diplomatic means. They can also refer cases to the International Court of Justice. They may also request countries in United Nations to enforce by: * Diplomatic and economic measures * Use of armed forces as to form and supervise a military coaltion. Countries always hold the right on self defense in case of an armed attack. Exceptions in customary international law * Scretching interpretation of UN Charter ** What counts as an armed attack (Terrorism; pre-emptive strike). ** What counts as a threat to international peace (humanitarian intervention). * Principles in appeal to customary law ** Necessity: ** Proportionality: Bibliography #↑ ICJ. (s.f.). How the Court works? Obtenido de International Court of Justice: http://www.icj-cij.org/court/index.php?p1=1&p2=6 #↑ UN. (s.f.). Current Members. Obtenido de United Nations Security Council: http://www.un.org/en/sc/members/ #↑ 3.0 3.1 UN. (s.f.). United Nations Actions to Counter Terrorism''. Obtenido de International Legal Instruments:'' http://www.un.org/en/counterterrorism/legal-instruments.shtml #↑ Use of force. (s.f.). En The law in world politics'' (págs. 117-149).'' #↑ War Crimes Tribunals. (s.f.). En G. J. Bass. Category:War Regime